Am I considered as al-Qaeda operative?

...Risen speaks of access to the switches most directly, he does so in the context of international to international calls (i.e., ones which though they physically travel through US switches do not involve a US location on either end, and I think can be readily minimized). Just because AT&T has given NSA access to Daytona, it doesn't necessarily mean that they've given away the farm (to be clear, it doesn't mean that they haven't, either).

As to whether AT&T can be successfully sued for this, I'd guess that the wording of the service contract and the precise nature of the data passed matter a great deal. Unfortunately, it would seem that a good deal of what's going on legally is somewhat groping, due to the classified nature of the programme.

reporting it is that it is a frivilous legal action that will be thrown out at the first hearing.

Under TITLE 50, CHAPTER 36, SUBCHAPTER I

§ 1802 Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

(a)

...

(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to--

(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance

http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001802----000-.html

So, AT&T would have been in violation of the law if they had failed to cooperate with the US government on this NSA program.

AT&T faces no legal jepardy since they were operating in good faith under orders of the Attorney General.  Once the Attorney General certified this program as legal, AT&T had no right to refuse to cooperate.

in State of War that talks about AT&T's role in this. Might want to check the book out. Even though it doesn't reinforce your worldview it might expand it, a little. Maybe.

requires "common carriers" to cooperate with the government in electronic survailence when the AG tells them to, I don't see how this legal action is going anywhere.  FISA provides a standard "good faith" defense to AT&T in this situation.  The law even requires carriers to "furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance."

Is there any evidence that AT&T did anything more than that?

didn't tell them too. They offered too.

under the color of the FISA act as Bush himself has repeatedly expressed live on national TV. They are either using FISA or they aren't. Y'all can't even get your stories straight.

legal justification internal to the administration was that FISA did not apply because of the AUMF does not mean that they shared that interpretation or justificaiton to the carriers they were operating with.  In fact, because of the very highly classified nature of the program, it's almost certain that they did not share that with the carriers.  To AT&T this would have been presented as a FISA warrantless foreign intelligence requirement certified by the Attorney General, which compelled their cooperation.

this action WAS NOT taken under FISA. that's the whole problem Ranger.

You can't apply a section of the law when that is not the authority that the AG claimed in order to compel the "common carrier" to provide access.

and even if it WERE conducted under authority of FISA, the section of US Code you reference is originally codified (emphasis in bold and underline is mine, likewise, commentary in curly brackets):

Ex. Ord. No. 12139, May 23, 1979, 44 F.R. 30311, provided:

By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act [this chapter] for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 (a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign not domestic intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act of 1978 (50 U.S.C. 1802 (b)), the Attorney General is authorized to approve applications to the court having jurisdiction under Section 103 of that Act [50 U.S.C. 1803] to obtain orders for electronic surveillance for the purpose of obtaining foreign intelligence information. again, NOT domestically

Not only does the civil suit have traction, there is SPECIFIC language against this in FISA and congress SPECIFICALLY withheld authorization for domestic surveillance in the Patriot Act. The president has committed an impeachable offense and has failed to uphold his constitutional duty.

First, since the program in question was classified, there is no reason why the administration would tell AT&T that it was outside the scope of FISA, but would, for operational security reasons, inform AT&T to provided assistance as the relevent sections of FISA compells.

Second, you still seem unable to come to grips with the fact that these programs only concern international communications (that being communications where at least one end of the connection is outside the US).  The NYT made very clear in their coverage of this issue that domestic communications were still only being intercepted after FISA warrants had been issued.  Also, Foreign Intelligence, as defined by FISA means:

(e) "Foreign intelligence information" means--

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against--

(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;

(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to--

(A) the national defense or the security of the United States; or

(B) the conduct of the foreign affairs of the United States.

Therefore, anything relating to al Qaeda plans (a recognized Foreign Power) is, by definision, foreign intelligence, even if it is collected within the US.

they were NOT operating under FISA - that is the whole point. therefore the FISA standard for foreign intelligence cannot be applied. We have no idea what the executive order defines. And no judge has been able to review it, nor has congress been able to exercise oversight over it. The fact that a few select senators were allowed in on the game doesn't change the fact that since all were bound by high security clearance not to discuss outside their briefing. That is not oversight.

Moreover, AT & T does not have to "assume" that the authority of the AG is taken under FISA. (as it was not) They would be well within in their rights to expect a citation of the authority under which their data is being commandeered. Just as a homeowner has the right to examine the warrant to search their home, any corporate counsel or officer that does not examine the documentation purporting to authorize the release of personal data held out to be private to their customers is probably in breach of their fiduciary duty to their board or the privacy agreeement with their customers or both.

(2) The term "foreign intelligence" means information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.

TITLE 50, CHAPTER 15, § 401a

http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00000401---a000-.html

By the way, Chapter 15 of title 50 is: NATIONAL SECURITY.

So, targeting AQ still falls under the definition of "foreign intelligence" even if they are operating inside the US.

Have you ever addressed Greenwald's discovery of the DeWine amendment? Eh? Spin. That's all you got. Sophisticated legalisms and spin for what is a domestic spying program. Plain and simple.

targeting "AQ" abroad or especially here in the U.S. is very nebulous and undefined prospect in and of itself as far as I can tell. Indiscriminately scanning thousands of electronic communications (which is what NSA does and always has) for any mention of anything POTENTIALLY related to AQ is pretty giant undertaking. What is different is that it includes DOMESTIC communications without color of probable cause and/or warrant.

Some possible examples: My brother and I constantly exchange email and IM messages and telephone calls in which (aside from news about our kids/pets/weather) we talk about any variety of subjects. These include the years he and I lived and travelled in the middle east, europe and asia. We talk about Islam, fundamentalists (of several religions) left and right wing politics here an abroad. We talk about war. And oil and pipelines and economics. He is a former military commander and knows a thing or two about suicide bombers, Hezbollah and Hamas. He now lives in Germany. I'm here in the U.S. and an international lawyer.  Neither one of us has ANYTHING to do with Al Qaeda. What assurance do I have that my communications with him have not been intercepted as "potential" terrorist communications? None whatsoever.

Here's another. Many people buy diamonds from overseas. "Blood diamonds" are a well known source of revenue to "AQ" and related terrorist organizations. So any communication related to the purchase of your lovely 18 karat engagement ring from abroad is also potentially "suspect" of AQ connections. Perhaps Kay Jewelers' customer service center is a Call Center in India -- and you call an 800 number to reach it thus completely unaware you are even calling outside the country. Terrorist connection? Hmmm.

Or, far more common I'm sure, any discussion of any financial contribution to an Islamic charitable institution is no doubt automatically suspect of AQ connections. Despite the fact that charitable contributions to mosques, schools, orphanages and hospitals is one of the 5 pillars of islam and has been since the time of Mohammed. Terrorist connection? Or "faith based initiative?"

None of those necessarily fits the "national security" definition of foreignintellegence.

Random allegations and mass data mining are not good enough.

How about some probable cause for invading my privacy here?

in the last mega-thread, but there has been so much stuff flying around I may have missed that one.  My take is that this DeWine issue is not nearly as big a deal as he makes of it because the amendment itself was a really lousy idea and probably unconsitutional, as it specified grounds for warrants that were in direct conflict with the wording of the consitution.  Remember, the legal question at hand here is the degree to which the president can aurhorize warrantless searches for foreign intelligence purposes.  If you don't like my take, you can read Orin Kerr's January 25th (2006 at 6:09pm) post on the issue:

http://volokh.com/archives/archive_2006_01_22-2006_01_28.shtml

Key sentence:   I read less into the documents than does Greenwald, and wanted to explain why I'm not inclined at this point to share his conclusion.

My basic point remains: To date, I see no evidence that AT&T was ever notified that the NSA operations they were assisting were being conducted outside of the FISA and therefore had no reason to suspect that the section of FISA that requires them to cooperate with the government may not be applicable.  FISA requires common carriers to provide not only access, but assitance to the government in collecting foreign intelligence that the AG has determined can be collected without a warrant.  The fact that AT&T willingly cooperated in no way changes that fact that under FISA, that cooperation is legally compelled.

you have the mistaken idea that "proble cause" is the universal standard for government searches.  In fact, the standard of probable cause only applies to law enforcement searches.  All other searches must meet a "reasonableness standard":

As the Supreme Court has emphasized repeatedly, "[t]he touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests." Knights, 534 U.S. at 118-19 (quotation marks omitted); see also Earls, 536 U.S. at 829. The Supreme Court has found a search reasonable when, under the totality of the circumstances, the importance of the governmental interests outweighs the nature and quality of the intrusion on the individual's Fourth Amendment interests. See Knights, 534 U.S. at 118-22.

...your privacy isn't actually being invaded the way that you think it is.

Having read Risen's book, as well as a bunch of the coverage out of folks that actually have a decent idea of how SIGINT works, both generally and in the specific instance of NSA, I have a feeling that where the types of contact you list might be "run through the net" is with link analysis (i.e., they're looking to build networks of who's contacting whom, working out from persons of interest without actually collecting on the contents of the communication, at least not until they've gone a goodly way through their "probable cause proxy" checklist). Depending on what type of information they're using, I'm not sure that you have a reasonable expectation of privacy (my understanding is that billing information [typically what number called what other number, at what time and for what duration] isn't covered by reasonable privacy expectations). If they've tapped into the billing functions real-time (and I think that's what Daytona is all about), then effectively they've got a very powerful tool, but oddly one that does have a decent chance of minimization - not as much as I think was done in the past, to be sure, but it's not necessarily all encompassing, either.

in terms of that balance in electronic surveillance was established in 1978.

By FISA.

Here's the rub Ranger. There is NO legal authority for the NSA to be conducting such surveillance -- not under the 4th admendment AND not administratively (emphasis added):

[quote]

In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance--but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance...may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis in original).[2]

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al-Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001).

But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

[endquote]

See ON NSA SPYING: A LETTER TO CONGRESS

By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne. In the New York Times Revew of Books, Volume 53, Number 2 · February 9, 2006

...would then be whether § 1809:

...is Constitutional as it applies to Executive authority.

is the Executive NOT subject to the laws of the land?

If Bush broke any other law wouldn't he be held accountable? Of course he would.

Watergate was all about the Executive branch breaking the simple laws about breaking and entering and money laundering, but at a deeper level, it was about Nixon's "abuse of power" and that is EXACTLY what we have here.  Some basic crimes that involve illegal search and seizure in violation of federal statute and Bush's continued abuse of executive authority. Both high crimes and misdemeanors.

...does, however, give the Executive powers that aren't given to everyone else. The law of the land gives the Executive powers to do things that it proscribes American citizens from doing. (Haven't seen too many folks from Topeka waging war on a foreign nation on their own authority -- courts have traditionally thought that was a pretty bad idea.) It's clear that the law as a construct isn't universally applied due to the specific nature of some positions, among them the Executive - the question in my mind is what the limits of the law, as applied, are in this specific instance.

I agree that, as written (both as a matter of what the law specifically says and what the broader intent of the law in the historical context of the time was), the lawmakers of the day intended this statute to govern this situation, but it's not clear to me that that can be reconciled with the Constitution.

I don't particularly have a horse in this race, BTW. I don't know what the answer is, and I'll not be terribly surprised if it goes either way. I continue to suspect that which way it breaks will depend to a large extent on what the technical specifics of the collection programme were, something that it is as yet quite unclear as to its specifics.

are laid out very specifically in the Constitution and his power to wage war as commander-in-chief depend upon CONGRESSIONAL declaraton of war and continued funding thereof.

It is a federal GOVERNMENT function, not an executive one. And indeed it IS the people of Topeka Kansas and Americans everywhere who wage the war - figuratively and literally. The sovereignty of the government is derived from the PEOPLE. Not the other way around. No executive is above the law -- that's why we call it the "Rule of Law" not "Rule of Men."

And powers not specifically granted to the federal government are withheld. See 10th Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

...a Congressional declaration of war, but the administration clearly believes that it received one. It's equally clear that much of Congress does not agree, and it's further clear that many of the folks who voted for that specific resolution emphatically did not intend it to be used in this particular manner (i.e., it wasn't a blank cheque). That having been said, the Executive is treating it as such. As I understand your system, the decision to wage war lies with Congress, while decisions pertaining to how war is waged lie with the President in the office of Commander in Chief. The Commander in Chief is asserting that he has been given authorization to wage war, and he's doing it as he sees fit (i.e., that this programme is an integral to his war powers).

Sorry, but no matter how many times folks run through this one it still seems to me that there's a set of mutually exclusive circularly justified arguments, with little to determine as to which has primacy. On the one hand I see a law clearly intended to be sweeping and to cover the situation (i.e., FISA) and on the other hand I see the very broad powers that the Commander in Chief has to wage war, and there's very little for me other than a leap of faith to  determine which is the one that trumps the other.

meant to add that they are not to "trump" eachother.

There's a difference between "separation of powers" and "checks and balances" - neither are meant to use as axes in a power grab.

The first is about the specific powers granted to each branch, the second is how they are to interact. The case of war powers is a good example though a complex one.

The separation part is clear -- declaration of war: congress; conduct of: preznint as commander in chief - of the army/navy not the public or other branches of government.

checks and balances during war is in the budget process, reporting on progress and oversight. Also the reason we have civilians in charge of pentagon who also report to congress from time to time.

Administrative agencies (including DoD) are created and empowered through an act of congress and budgeted the same way. They are administered by the executive. But the administration is subject to congressional oversight with full power to investigate, subpoena etc. That's checks and balances.

They are supposed to work together. Secret executive orders DESIGNED to circumvent the existing law and process of government to accomplish ends that the executive branch KNOWS it would not achieve through normal channels is not in the plan. That is breaking the law.

not that in this specific war Bush needed a declaration of war, but that GENERALLY the waging of war is a federal government, not an exclusively executive, power.

No declaration no war, no commander in chief. No budget approval, no war. No reporting to congress on progress of same, no war. The "executive" does not single-handedly wage war. The government as a whole does.

The senate and congressional committees have oversight for a reason. The "executive" becomes the commander in chief of the army and navy - not the commander in chief of the country.